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[2009] VSCA 171
Court of Appeal (Vic)
2009-07-29
WARREN CJ, NETTLE and REDLICH JJA
Original judgment source is linked above.
CIVIL PROCEDURE - Appeal from judgment of judge of Trial Division refusing leave to appeal -s 148 (1)(b) VCAT Act - Leave to appeal required - Border Auto Wreckers v Strathdee [1996] VSC 55; (1997) 2 VR 49, ; , applied.
Joinder of party at VCAT - Whether notice prior to joinder required - Whether denial of natural justice - Conditions for joinder - s 60(1) VCAT Act.
No reasons for decision provided - Whether required - s 117 VCAT Act - Whether 'interim' order includes 'interlocutory' order.
1 This is an application for leave to appeal from an order of the judge in the Practice Court dismissing an appeal from a Master's refusal to grant leave to appeal from an order of the VCAT pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act').
Joinder Applications
9.1 Parties should take all reasonable steps to identify potential parties to a proceeding as soon as practicable, and make applications for joinder in a timely manner and in accordance with this Practice Note and any directions that may be made.
9.2 Leave of the Tribunal is required for joinder of parties. Any application for joinder of parties, whether as respondent or joined party, should be made on the Application for Orders/Directions form which must be accompanied by affidavit material in support and draft Points of Claim against the proposed party.
9.3 Subject to clause 9.6, an application for joinder will be listed for a directions hearing at which time the parties should expect the application to be heard and determined, subject to the discretion and direction of the Tribunal. Where the proposed party consents to joinder, orders in chambers may be made at the discretion of the Tribunal. Where the Tribunal declines to make such orders in chambers the directions hearing will proceed.
9.4 A copy of such application together with the supporting material must be served by the applicant for joinder on all parties to the proceeding, and the proposed party (who must also be advised of the date and time of the directions hearing at which the application will be heard) by 12 noon at least four (4) business days prior to the directions hearing (or as otherwise ordered).[1]
9.5 Should any party to the proceeding, or the proposed party, oppose such application for joinder they must, where practicable, file and serve affidavit material in reply by 12 noon at least two (2) business days prior to the directions hearing.
9.6 Where the proceeding relates to an appeal by an owner or a builder of a decision of a warranty insurer, it is generally desirable that the owner of the builder as the case may be, is a party to the proceeding. Where they are not named as a party in the original application, order for their joinder may be sought.
DEPUTY PRESIDENT: So in this list the practice is [that] potential joined parties be heard before joined. If so that's something we'll have to accommodate and there'll be some time allowance for that process.
COUNSEL: Could I just be heard on that, sir? Under the practice note, the proper course certainly in a review of an insurer's decision is to join the builder without having them heard prior to it occurring. In this - - -
DEPUTY PRESIDENT: In my lists, I don't give potential joined parties the right to be heard anyway, I obviously have some personal sympathy for that view.
COUNSEL: In this case it's not suggested there'll be a claim made against the builder in this proceeding so it's not that their interests are exposed in that sense. The purpose of the joinder is to have the builder, on the one hand, if the builder wants to ... exercise an opportunity to be heard, but in any event, to bind the builder to the decision in this proceeding.
DEPUTY PRESIDENT: There are implications for the builder.
COUNSEL: Certainly, but the only argument the builder could advance would be that it shouldn't be made a party so that it has the opportunity to challenge in a separate proceeding and not in this proceeding the amount - - -
DEPUTY PRESIDENT: You would say that would be so obviously unmeritorious the contention to deprive the builder of the opportunity to put - to deprive the builder - - -
COUNSEL: Yes.
3 The first question is whether leave to appeal is required. In Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee[3] this court held that the requirement in s 17A(4)(b) of the Supreme Court Act 1986,[4] and the corresponding requirement in s 74(2D) of the County Court Act 1958, for leave to appeal from a 'judgment or order in an interlocutory application', is a requirement for leave to appeal from 'an interlocutory judgment or order. Brooking JA, with whom Tadgell and Phillips JJA agreed, identified four 'weighty considerations' which commanded that view: first, the requirement for leave to appeal may be regarded as a very well established Victorian institution, and so it was not lightly to be supposed that the change of verbiage with which the court was concerned was intended to take it away; secondly, there was nothing in the extrinsic materials to suggest that any change was intended; thirdly, the courts had come painfully to a position where those orders which are interlocutory and those which are final can be determined with relative certainty, and it was not lightly to be supposed that Parliament intended to cast that aside; and finally, there was high authority, which Brooking JA essayed, for the view that the words 'in an interlocutory application' may do no more than direct attention to the required interlocutory character of the order made.[5]
4 In Dodoro v Knighting & Anor[6] a five member bench of this court held that an order giving leave to institute common law proceedings pursuant to s 93(4)(d) of the Transport Accident Act 1986 is an interlocutory judgment or order and, therefore, following Border Auto, requires leave to appeal pursuant to s 74(2D) of the County Court Act 1958. Callaway JA, with whom the other members of the court agreed, reasoned that, despite such doubts as may have been expressed in Roy Morgan Research Centre Pty Ltd v Commissioner for State Revenue of the State of Victoria,[7] the decision in Border Autos should continue to be followed because it was decided by a court specially constituted to resolve the uncertainty which attended the language of s 17A(4) and because the decision had worked well in practice.
5 In Luck v Renton[8] Maxwell, P and Harper AJA referred with approval to the decision in Dodoro and added that, in their view, the High Court's observations in Roy Morgan did not cast doubt on the decision in Border Autos. They held accordingly that an appeal to this court from a judgment of a judge of the Trial Division refusing leave to appeal under s148(1)(b) of the VCAT Act is a 'judgment or order in an interlocutory application' which requires leave to appeal under s 17A(4)(b) of the Supreme Court Act. It follows, in our view, that leave to appeal is required.
6 Counsel for Dura submitted that Border Autos was wrongly decided, with the result that Dodoro and Luck v Renton were also wrongly decided, and that we should not follow them. Alternatively, he contended that, if those decisions were correct, they were distinguishable on the basis that they were concerned with leave to appeal from interlocutory judgments or orders of the County Court, as opposed to orders of the VCAT, and that different considerations apply to an appeal from an order of a court than to an appeal from an order of the VCAT. Either way, in his submission, an order refusing leave to appeal under s 148(1)(b) of the VCAT Act is not 'a judgment or order in an interlocutory application' and, therefore, an appeal to this court from an order refusing leave to appeal under s 148(1)(b) lies as of right.
7 Those submissions must be rejected. We are bound to follow the decisions in Border Autos and Dodoro, unless convinced that they are plainly wrong[9] and, in our view, they are not wrong. To the contrary, we think that Brooking JA's analysis is compelling. The same applies to Callaway JA's reasoning in Dodoro. And as to distinguishing Border Autos and Dodoro, it suffices to say that we are unable to discern any logical basis for the idea that, although the expression 'judgment or order in an interlocutory application' applies to judgments of the County Court, it was not intended to apply to orders of the VCAT.
8 Counsel for VMIA referred to the observation of the High Court in Roy Morgan that there is a difference between an application for leave to appeal from an order of a court and leave to appeal from an order of the VCAT in that, in the case of an appeal from a tribunal like the VCAT, the appeal is the first opportunity for curial consideration of the matter whereas, in the case of appeals from the County Court, the matter has already received judicial consideration by a court.
9 For present purposes, however, that observation is beside the point. It encapsulated a distinction which the High Court invoked in order to support its conclusion that, although it did not regard itself as bound to give reasons for refusing special leave to appeal from a judgment or order of an intermediate appellate court, a judge of the Trial Division is bound to give reasons for refusing leave to appeal from an order of the VCAT.[10] That stemmed from the High Court's concern that the reasons of the VCAT would be inadequate to reveal to the applicant why the judge had refused leave to appeal (whereas, presumably, the reasons of an intermediate appellate court would be sufficient to reveal why the High Court refused special leave). It had nothing to do with the question of whether an order refusing leave to appeal to appeal from an order of the VCAT to the Trial Division is 'a judgment or order in an interlocutory application'.
10 That leaves the question of leave. No point was made of the fact that the application for leave to appeal was made out of time. Nor should it have been. Dura filed its purported notice of appeal within time for the filing of an application for leave to appeal and, as soon as it was pointed out that leave was required, it filed its summons of 8 December 2008 seeking leave to appeal. The real question is whether the judge's decision refusing leave to appeal from the order joining Dura to the VCAT proceeding is attended by sufficient doubt and productive of sufficient injustice to warrant the grant of leave to appeal.[11]
11 The principal contention advanced in support of the application for leave was that the order joining Dura to the VCAT proceeding was vitiated by a denial of natural justice constituted by VCAT's failure to accord Dura a right to be heard before the order was made.
12 That contention cannot be sustained. Although the VCAT is bound to accord natural justice,[12] the requirements of natural justice do not always extend to affording a hearing. The content of natural justice is variable according to the circumstances of the case.[13] While the law recognises a general duty to act fairly, in the sense of according procedural fairness in the making of administrative and quasi-judicial decisions that affect rights, interests and legitimate expectations,[14] it also recognises that, where a decision-making process involves different steps and stages before a final decision is made, the requirements of natural justice may be satisfied if the decision-making process, viewed in its entirety, entails procedural fairness.[15] As a rule, a preliminary decision which forms part of a broader decision-making process will not attract a right to be heard if the opportunity for adequate hearing is available in later stages of the process.[16]
13 Of course, there are exceptions. Some preliminary decisions may lead to immediate consequences of such importance to a person affected that the decision maker is obliged to afford the person a right to be heard before making the decision. Ainsworth v Criminal Justice Commission,[17] Annetts v McCAnn[18] and Johns v Australian Securities Commission[19] are all examples of that kind.[20] But an order which does no more than join a party to a VCAT proceeding so as to bind that party in relation to a determination res inter alios acta is not of that character.
14 In effect, an order joining a party under s 60 of the VCAT Act is like the institution of a third party proceeding and, as a matter of long standing practice and the rules of court, a third party proceeding may usually be instituted without notice to the third party.[21] There is no lack of natural justice in that. The institution of a third party proceeding or, in this case, the order joining a party, is simply the beginning of a process in which the joined party will be given an ample opportunity to be heard. So far from denying the party a hearing, one of the purposes of the order is to ensure that that there will be an opportunity for that party to be heard.
15 Counsel for Dura referred to the decisions of this court in Herald & Weekly Times v VCAT,[22] Garde-Wilson v Legal Services Board,[23] and the decision of Gillard J in Wright v VCAT[24] as supporting the view that Dura should have been given a right to be heard before it was joined to the proceeding. We do not agree that the reasoning in these cases provides any support for the notion that a putative party is entitled to be heard before being joined to a VCAT proceeding.
16 In Herald & Weekly Times it was held that VCAT should have afforded the Herald and Weekly Times a right to be heard before making an order under s 146(4)(b) of the VCAT Act to restrict the Herald and Weekly Times vested right to access to certain documents. Inasmuch as the immediate effect of the order was to prejudice the Herald and Weekly Times 'rights, interests and legitimate expectations', it was evident that natural justice required that Herald and Weekly Times be heard.
17 In Garde-Wilson v Legal Services Board, it was held that a solicitor had a right to a fair hearing before the Legal Services Board determined not to renew her practising certificate. Unsurprisingly, there was not a great deal of dispute about that. The real point at issue was whether certiorari[25] to quash a determination made without affording the solicitor a fair hearing should be refused in the exercise of discretion (because she was entitled to a hearing de novo on appeal to the VCAT). The court ruled that certiorari should go because, among other considerations, of the potential impact of the determination on the solicitor's professional reputation and the importance of ensuring as a matter of policy that those who conduct registration proceedings understand the importance of ensuring that they are scrupulously fair.
18 In Wright v VCAT Gillard J held that the rules of natural justice prevented the VCAT from entertaining an application for substantive relief without giving the party affected a right to be heard.
19 Counsel for Dura also prayed in aid the VCAT Practice Note - PNDB1(2007) - General Procedures.[26] He submitted that the fact that the Deputy President made the order joining Dura without requiring that notice first be given in accordance with the paragraph 9 of the Practice Note was indicative of error and productive of injustice.
20 We do not think that takes the matter any further. The Practice Note expressly provides in its opening paragraph that its operation may be varied by order of the Tribunal at its discretion, and it is apparent from the passage of the transcript to which we have referred, that the Deputy President did determine to vary the operation of the Practice Direction by dispensing with the requirements of paragraph 9. Perhaps, it would have been preferable if he had insisted upon compliance with paragraph 9, if only to avoid the possibility of an application of the kind with which we are now required to deal. But we see no reason to doubt that his decision to dispense with compliance was within the range of a sound discretionary judgment.
(ii) Failure to consider and weigh fairly the considerations for and against joinder
21 Counsel for Dura advanced a subsidiary argument that it was apparent from the transcript that the Deputy President had not given any consideration to whether the conditions for joinder set out in s 60(1) of the VCAT Act had been satisfied. It followed, it was said, that the decision to join Dura was vitiated by breach of the fundamental duty of a quasi-judicial decision maker to weigh fairly and rationally the considerations for and against the decision.[27]
22 It will be apparent from what we have said already said that we reject that contention too. It is plain enough that the order for joinder was made pursuant to s 60(1)(a) on the basis that it was appropriate that Dura be bound by the determination of quantum; and, in our view, such reasoning was appropriate.[28]
23 Counsel for Dura submitted to the contrary that one good reason for not joining Dura to the VCAT proceeding was that, after the order was made, VMIA instituted a proceeding in the Trial Division of the Supreme Court seeking recovery against Dura of any amount which VMIA may be obligated to pay to the Owners Corporation; and that there was no good reason why the assessment of quantum as between VMIA and Dura should not be determined in that proceeding.
24 It is not clear from the materials before us, however, what is involved in that other proceeding. If the fact were that VMIA is seeking the same relief against Dura in that proceeding as it seeks against Dura in the VCAT proceeding then, presumably, one or other of the claims would be stayed. But we are not asked to deal with an application for stay and the possibility that one might at some time be ordered does not appear to us to affect the efficacy of the order earlier made to join Dura to the VCAT proceeding.
25 Lastly, counsel for Dura argued that the requirements of natural justice bound the Deputy President to provide adequate reasons for his decision and that his refusal to do so was an error of law which vitiated the decision. More particularly, counsel submitted, the Deputy President's reliance on s 117 of the VCAT Act was misplaced because, according to counsel, the decision to join Dura was not an 'interim decision' within the meaning of that section.
26 That argument is opposed to the conclusion of Phillips JA, with whom Tadgell and Batt JJA agreed, in Secretary to the Department of Premier and Cabinet v Hulls,[29] that 'interim' in s 117 means 'interlocutory'. So far as we know, it has not until now been suggested that 'interim' in s 117 means anything other than 'interlocutory', and certainly VCAT has consistently applied the section on the basis that the expressions are synonymous.[30] But counsel for Dura argued that the plain and ordinary meaning of 'interim' and its usual legal connotation is 'for the time being', and he submitted that, contrary to what was said in Hulls, it should be taken to have that meaning in s 117.
27 There is some force in that argument. The natural and ordinary meaning of the adjective 'interim' is 'temporary or provisional ..., adopted in the meanwhile',[31] and that is also its usual meaning in the law. Generally speaking, an interim order is one which is conditioned to last for the time being or until a specified time[32] whereas an interlocutory decision is a broader conception of a decision which is not finally determinative of the rights of the parties.[33] Of course, most interim decisions are also interlocutory decisions in the sense that they do not finally determine the rights of the parties; and, therefore, an interim order may be an interlocutory order for the purposes of s 17A(4) of the Supreme Court Act 1986. But we allow that the adjective 'interim' is ordinarily used to denote that an order is to last only for a specified time, as opposed to until the hearing and determination of the proceeding and, other things being equal, one might suppose that Parliament used 'interim' in s 117 of the VCAT Act in order to denote that distinction.
28 Having said that, however, it would make little sense if the effect of s 117 were to require the VCAT to give written reasons for all forms of interlocutory orders other than interim orders and yet not require the VCAT to give written reasons for interim orders. For apart from anything else, interim orders are capable of having just as much and sometimes more effect on the rights of the parties as other forms of interlocutory order. For example, an interim order in the nature of an injunction lasting several weeks would be likely to have a far greater effect on the parties than an interlocutory order, say, for the provision of particulars or expert reports or even for joinder of a party. So, if the construction of 117 were as Dura contends, one would have to take Parliament as intending to dispense with the provision of reasons for interim orders of even the most substantial kind while mandating the provision of reasons for other interlocutory orders of even the most inconsequential kind.
29 One possible explanation is that Parliament only ever conceived of the VCAT being required to give reasons in respect of final orders - hence, the section heading: 'Reasons for final orders' - and, in order to avoid doubt as to whether a substantive interim order should be thought of as a final order for that purpose, expressly provided in s 117 that the requirement for reasons would not extend to interim orders.
30 Interestingly, that is the scheme adopted in the Australian Capital Territory Civil and Administrative Tribunal Act 2008. Under s 60 of that Act, the Australian Capital Territory Civil and Administrative Tribunal is required to give reasons if it 'makes an order on an application', and s 60(4) provides that the section 'does not apply to an order under section 53 (Interim orders)'. Section 53 provides for the making of interim orders before the hearing of an application for substantive relief, if the tribunal is satisfied that it is necessary to protect the position of the party applying for the order. What appears to be contemplated under that Act, therefore, is that the requirement to give reasons only applies to the making of orders for substantive relief and that it not apply to interim orders even if they are of a substantive nature.
31 The Victorian Act is not as well drafted as the Australian Capital Territory legislation. It does not define 'interim orders' or make other express provision for them and, apart from the restriction to final orders in the heading to s 117, it does not provide expressly for the orders to which the section is intended to apply. But the heading to s 117 and the express exception of interim orders suggest that s 117 was only ever envisaged as applying to final orders; and, although s 117 was enacted before 1 January 2001, so that the heading cannot be treated as part of the section,[34] it may be used as an aid to its interpretation.[35]
32 In the end, however, we are not disposed to depart from the interpretation of 'interim order' adopted in Hulls. Although, strictly speaking, obiter, it was considered obiter,[36] and it was agreed in by all members of a powerfully constituted court. We are not convinced that it is wrong. And if it were wrong, it would still not avail Dura. For in that event, the better view would be that s 117 should be construed as confined to 'final orders' and the express exception of 'interim orders' as ex abundanti cautela.
33 It follows that the application for leave should be dismissed.
[2] Section 117(1) of the VCAT Act provides that:
(1) The Tribunal must give reasons for any order it makes in a proceeding, other than an interim order, within-
(a) 60 days after making the order; or
(b) such other period as is specified by the rules or the President.
(a) from an order allowing an extension of time for appealing from a judgment; or
(b) without the leave of the Judge of the Court or Associate Judge constituting the Trial Division or of the Court of Appeal, from a judgment or order in an interlocutory application, being a judgment or order given by the Trial Division constituted by a Judge of the Court or an Associate Judge, as the case requires, except in the following cases -
(i) when the liberty of the subject or the custody of minors is concerned;
(ii) cases of granting or refusing an injunction or appointing a receiver;
(iii) a decision determining the claim of a creditor or the liability of a contributory or the liability of a director or other officer under the Corporations Act or the Corporations Law or the Companies (Victoria) Code in respect of misfeasance or otherwise;
(iv) a decision dismissing a proceeding for want of prosecution;
(v) such cases prescribed by the Rules as in the opinion of the Judges of the Court making the Rules are of the nature of final decisions.
[5] [1996] VSC 55; [1997] 2 VR 49, 51-54 (Brooking JA).
[7] [2001] HCA 49; (2001) 207 CLR 72, 82 [23].
[9] Avco Financial Services Ltd v Abschinski & Ors; Avco Financial Services Ltd v Adonis & Ors [1994] VicRp 76; [1994] 2 VR 659; Farrar v Western Metropolitan College of TAFE [1998] VSCA 25; [1999] 1 VR 224, 228-9 [13]-[15] (Charles JA) and 230 [21] (Winneke P); RJE v Secretary to Department of Justice [2008] VSCA 265 [49]; Gett v Tabet (2009) 254 ALR 504 [301].
[10] Roy Morgan Research Centre Pty Ltd v Commissioner for State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72, 83 [25].
[11] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441-2.
[12] In addition to general precepts, s 98(1) of the VCAT Act expressly so provides.
[13] Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 514; Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, 16 [48].
[14] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584.
[15] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578.
[16] The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582; Twist v The Council of the Municipality of Randwick [1976] HCA 58; (1976) 136 CLR 106; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Edelsten v Health Insurance Commission (1990) 96 ALR 673; Director of Asset Confiscation Office v Nguyen [2002] VSC 90; (2002) 128 A Crim R 531, 537 [20] (Ashley J); Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd Ed, 442.
[20] See also Byrne v Marles [2008] VSCA 78.
[21] Just as a new proceeding may usually be instituted without notice to the putative defendant.
[25] Scil, an order in the nature of certiorari under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.
[27] AMP General Insurance Ltd v Victorian WorkCover Authority & Ors [2006] VSCA 236 [27].
[28] See and compare _Sandtara Pty Ltd v Abigroup Ltd & Or_s (1997) 42 NSWLR 5, 8-9.
[29] [1999] VSCA 117; [1999] 3 VR 331, 336 [14].
[30] See for example, Dias v Burbank Aust Pty Ltd (Unrep. VCAT, Walker, SM, 26 September 2000); Taxis R Us Pty Ltd v Concord Gem Pty Ltd [2003] VCAT 1165; Reid v FAI General Insurance Co Ltd [1999] VCAT 1773.
[32] See for example, Algar v Middlesex County Council [1945] 2 ALL ER 243.
[33] Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, 440_; Carr v Finance Corporation of Australia Ltd [No 1]_ [1981] HCA 20; (1981) 147 CLR 246, 252-3.
[35] The Ombudsman v Moroney [1983] 1 NSWLR 317, 325 (Moffit P); Clarence v Electricity Commission of New South Wales (1990) 20 NSWLR 1, 6 (Kirby P); Pearce and Geddes, Statutory Interpretation in Australia 6th Ed. [4.49].
[36] In the sense in which we understand that expression to have been used in Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151 [134].
Dura (Australia) Constructions Pty Ltd
The Victorian Managed Insurance Authority & Anor [2009] VSCA 171
(1997) 2 VR 49
(2004) 10 VR 277
(2001) 207 CLR 72
(2009) 254 ALR 504
(1977) 137 CLR 487
(2003) 214 CLR 1
(1985) 159 CLR 550
(1992) 175 CLR 564
(1958) 100 CLR 582
(1976) 136 CLR 106
(1987) 163 CLR 378
(1990) 96 ALR 673
(1990) 170 CLR 596
(1993) 178 CLR 408
(2008) 19 VR 398
(1997) 42 NSWLR 5
(1966) 117 CLR 423
(1981) 147 CLR 246
(1990) 20 NSWLR 1
(2007) 230 CLR 89